Appeal No. 1996-3871
Application No. 08/354,747
bridging specification pages 27 and 28) and accordingly that
these claimed products are different from and patentable over
the products of the applied prior art. However, the laudatory
comments made by the appellant regarding the retained flavor
and aroma of his dehydrated products are strikingly similar to
the laudatory comments made in the applied references
regarding the food products described thereby (e.g., see the
Abstract of the Aung patent). Thus, the record before us
reflects that the here claimed products are indistinguishable
from the applied prior art products.
Furthermore, as explained by the examiner in the answer,
it is the appellant’s burden to prove that these prior art
products do not necessarily or inherently possess the
characteristics of his claimed product. In re Best, 562 F.2d
1252, 1255, 195 USPQ 430, 433 (CCPA 1977). Whether the
rejection is based on 35 U.S.C. § 102 or 35 U.S.C. § 103,
jointly or alternatively, the burden of proof is the same, and
its fairness is evidenced by the inability of the Patent and
Trademark Office to manufacture products or to obtain and
compare prior art products. In re Best, 562 F.2d at 1255, 195
4
Page: Previous 1 2 3 4 5 6 7 Next
Last modified: November 3, 2007